New law will help protect freedom of speech for Americans overseas

Imagine you are a tourist visiting a foreign country and you witness police officers challenging young women in the street. After the police move on, you learn that this is a common “shakedown” for protection money. You return home and write a short article in your local newspaper about what you saw, identifying the badge numbers and last names of those officers. The article is picked up by the Associated Press, and appears in media worldwide.

Six months later, you receive notice of a libel lawsuit filed against you in another country. The trial will be held, neither in America nor in the country that you visited, but in a third country, where the libel laws are very favorable for plaintiffs. Attorneys advise you to settle, since you will almost certainly lose. You think: “What did I do wrong? I simply exercised my right to free speech.”

The problem is that most of the world is not like America, where freedom of speech is guaranteed and where it is therefore difficult to sue for libel. American writers, artists and others who give witness to injustices throughout the world are regularly sued in foreign courts where their individual freedoms are not constitutionally protected. In these courts, where libel laws favor the plaintiffs, defendants frequently settle before committing to prolonged and costly trials with little hope for exoneration.

This is called “libel tourism” and it is discouraging for those who shed light on critical and emerging threats around the world; the rise of radical Islam, the violation of women’s rights, or the return of human slavery and economic subjugation.

To its credit, Congress recently passed the SPEECH (Securing the Protection of our Enduring and Established Constitutional Heritage) Act, also known as Rachel’s Law, for the scholar Rachel Ehrenfeld, a victim of libel tourism. President Obama signed it into law on Aug. 10.

Ehrenfeld was guilty of telling the truth. In her book, “Funding Evil: How Terrorism is Financed and How to Stop It,” she showed how a Saudi billionaire, Khalid bin Mahfouz, was involved in funding several terror groups, including al Qaeda and Hamas. Mahfouz sued Ehrenfeld for libel in London, attempting to use the plaintiff-friendly British libel laws, to intimidate her into silence.

This wasn’t a first for Mahfouz. He had previously used this same approach against others, often forcing capitulation, compensation and apologies.

Because Ehrenfeld neither lived in England nor published her book there, she refused to acknowledge the British court’s jurisdiction. The English court ruled against her by default and ordered all unsold copies of the book to be destroyed and payment of monetary damages to Mahfouz.

The SPEECH Act would not have prevented this suit to be brought in England. However, it does empower U.S. courts to refuse to enforce foreign libel case judgments and thereby protect American citizens and their assets in the United States.

It is not a law designed to impose American libel standards on the rest of the world. It ensures that those who wish to bring a libel or defamation lawsuit against an American citizen whose original expressions occur in America do so in an American court in order to receive an enforceable judgment.

From my own experience, both as chair of the Corporation for Public Broadcasting and in service on the board of the Broadcasting Board of Governors, this law will be immensely valuable.

Americans who make a living by investigating, researching and speaking out about matters of public policy around the world now know that they will not need to defend their work where the standards for free speech protections are low. And they will be emboldened to pursue the truth where the facts lead them. No intimidating letter from a lawyer will stop them.

These are the inherent principles of free speech — not just the ability to say what one thinks, but the ability to pursue truth. After all, if we allow the freedom of speech to be impinged for some, we all suffer. When we don’t know what wrongs are perpetrated around the globe, we are not only blind to the suffering of others — we are blind to the potential risks to our freedoms and ourselves.
Cheryl Halpern, a resident of Livingston, is former chairman of the Corporation for Public Broadcasting.